California Medical Association challenges drug-tracking system in court

A weak case against a crash-diet doctor in Burbank, Calif. has created a golden opportunity for doctors to prevent the state from disciplining them for faulty prescribing practices.

First, a bit of background.

The Cailfornia Controlled Substance Utilization Review and Evaluation System (CURES) was set up in 1939 and strengthened after a tech entrepreneur, Bob Pack, lost his children in an accident involving a driver high on painkillers. It got another boost of funding following a series in the Los Angeles Times by Lisa Girion and Scott Glover.

See Also: Part 1: Case against California doctor jeopardizes drug-tracking system

The California Medical Association has fought efforts to make CURES a better physician oversight tool, and CURES subsequently has fallen into disrepair from a lack of funding. Pack has been pushing for the passage of Proposition 46 in California to require a range of physician oversight measures, including a requirement that doctors check the CURES database before prescribing to someone. The medical association and its allies have strenuously fought Prop. 46, and not without controversy. It was recently reported that the group made a $75,000 donation to a group founded by Los Angeles County Supervisor Mark Ridley-Thomas, who subsequently called for a county vote to oppose the ballot initiative.

Because CURES records became part of the California Medical Board’s case against Dr. Alwin Lewis – creator of the “Five Bite Diet” – it is now fair game for the doctors’ lobby to attack. And here’s the twist: The lobby is doing so in the name of patient rights.

What?

The medical board wasn’t investigating patients when it went after Lewis. It was trying to figure out whether Lewis was prescribing drugs in dangerous amounts or in ways that could interact badly. It failed to make that case, in part because CURES records showed that Lewis did not do anything wildly out of the ordinary.

Here’s how the medical board used CURES, according to court documents:

In May 2008, a patient went to Lewis. She then complained to the medical board “about the quality of care and treatment that she received during her initial consultation … The patient’s complaint focused on Lewis’ recommendation that she lose weight and start a diet that the patient considered to be unhealthful.” That’s Lewis’ “Five Bite Diet” – eat nothing for breakfast and eat five bites of anything you want for lunch and dinner.

The medial board started to investigate and obtained CURES records for Lewis’ prescribing patterns from Nov. 1, 2005, through Nov. 25, 2008, and from Dec. 16, 2008, through Dec. 16, 2009. Court documents state:

The investigator testified that it was a common practice during the course of an investigation to ‘run’ a CURES report on the physician.

The board contacted six patients and received signed releases from three. Ultimately, the board only obtained medical records for two patients.

After an eight-day hearing before an administrative law judge, much of the case against Lewis was thrown out. The judge recommended three years of probation, and the board adopted that recommendation. Lewis could have had his license revoked had the medical board proved its case.

But Lewis did not accept the probation judgment. In a rare move for a disciplined doctor, Lewis took the Medical Board of California to court. He sued the board, alleging that the board had “violated his patients’ informational privacy rights under article I, section 1 of the California Constitution by accessing CURES during the course of an investigation unrelated to improper prescription practices, and also violated their rights not to be subjected to unwarranted searches and seizures.”

In Los Angeles Superior Court, Judge Joanne B. O’Donnell ruled against Lewis. She wrote:

[P]ublic health and safety concerns served by the monitoring and regulation of the prescription of controlled substances serves a compelling public interest that justified disclosure of prescription records without notification or consent.

The Appeals Court took it a step further, ruling: “Three of Lewis’ patients voluntarily consented to the release of their medical records. Lewis has no standing to assert their privacy rights.”

The three-judge panel upheld the Superior Court decision, which upheld the Medical Board decision, and ruled unanimously against Lewis.

Lewis is now appealing to the California Supreme Court. And he’s getting some help from the California Medical Association and the American Medical Association. The medical associations filed a brief with the court:

The duty of physicians to protect patient privacy lies at the very core of the medical profession. Confidentiality is one of the most enduring ethical tenets in the practice of medicine, and is essential to the patient-physician relationship. It is the cornerstone of the patient’s trust [and is key to] successful medical information gathering for accurate diagnosis and treatment, an effective physician-patient relationship, good medicine and quality care.

Medical associations like to promote the idea that they are looking out for patients’ interests. But they rarely get involved in protecting an individual doctor who has been accused of putting patients at risk. Attempting to undermine a tracking system aimed at protecting patients from bad prescribing behaviors also seems like an odd move for a group whose stated mission is to “promote the art and science of medicine and the betterment of public health.”

I asked the California Medical Association a few questions about its fight against CURES, but I did not get any response.

The appeals court judgment came down firmly on the side of the medical board being able to use CURES to investigate doctors:

We conclude on balance, the CURES statute does not amount to an impermissible invasion of Lewis’ patients’ state constitutional right to privacy, as there are sufficient safeguards to prevent unwarranted public disclosure and unauthorized access to CURES data.

But who knows how the state Supreme Court will rule.

If the court rules that patients’ rights are violated when a medical board uses CURES to investigate a doctor for potential wrongdoing, then all manner of mischief may soon be fully concealed from view.

Photo by KOMUnews via Flickr.